Podihamy v. Jayaratne.
PODIHAMY, Appellant, and JAYARATNE, Respondent.
174—C. It. Galle, 25,622.
Tort—A neighbour's right to sue for damages incurred by fall of tree.
The plaintiff sued the defendant for damages sustained by him inconsequence of a coconut tree which was in the possession of the defendantfalling across the roof of the house of the plaintiff. The plaintiff wasaware of the dangerous nature of the tree and had drawn the defendant’sattention to it.
Held, that although the tree stood on a common land the defendantwas liable to repair tne plaintiff’s damage.
1 (1900) 6 N. L. R. 133.3 (1911) 5 Leader L. R. 39.
3 (1926) 28 N. L. R. 266.
SOERT8Z A.C.J.—Podihamy v. Jayaraine.
against a judgment of the Commissioner of Requests,(with him A. E. Keuneman (Jnr.) ), for the plaintiff,
N. M. de Silva (with him G. T. Somarawickreme), for the defendant,respondent.
Cur. adv. vuU.
September 12, 1946. Soertsz A.C.J.—
This was an action brought to recover damages sustained by theplaintiff in consequence of a coconut tree which, admittedly, was in thepossession of the defendant by arrangement among the co-owners of thisland, falling across the roof of the house of the plaintiff, himself a co-owner in occupation of another portion of the land that is to say theportion on which this house stood.
The plaintiff appears to have entertained an apprehension that this treewas dangerous and he, failing to have it cut down by thedefendant, invokedthe aid of the Village Committee. That body, in pursuance of its powers,called upon the defendant to cut it down and intimated to him that if hefailed to do so, they would have it felled. The defendant did nothing.Before the Village Committee could bestir itself into action, the fears ofthe plaintiff came true. The tree fell across his house.
The Commissioner dismissed the plaintiff’s action on the ground thatin as much as he had elected to invoke the assistance of the VillageCommittee he vas committed to that course and had no other remedyagainst the defendant. He' also held that the plaintiff himself could havecut down the tree and that, for that reason too, the defendant wasabsolved from liability. These are entirely erroneous views andMr. Samarawickreme appearing for respondent declared that he couldnot support them. He, however, sought to uphold the decree on theground that there was contributory negligence on the part of the plaintiff.I shall deal with that in a moment, but before doing that I should wishto say that apart from the principle involved in the maxim sic utere tuout alienum non laedas, there devolved on the defendant a duty to takecare at least from the time his attention was drawn to the dangerousnature of the tree. The tree, although standing on a common land, was,so far as the questions that arise in this case are concerned, his responsi-bility. He is, therefore, liable to repair the plaintiff’s damage.
There are circumstances in which a threatened neighbour may resortto self-help and cut down a dangerous tree, but the fact that he maydo so does not involve the proposition that he must do so or suffer theconsequences. The tact that the plaintiff has a certain right in respectof a matter does not absolve the defendant from his obligation in respectthereof.
In regard to the plea set up for respondent that there was contributorynegligence on the part of the plaintiff, there is nothing I can find to supportit. I allow the appeal and direct that decree be entered for the plaintifffor the sum of Rs. 90 agreed upon with costs in both Courts.
PODIHAMY, Appellant, and JAYARATNE , Respondent